Turner v Ku-ring-gai Council [2016] NSWLEC 1418

Land and Environment Court New South Wales

Medium Neutral Citation: Turner v Ku-ring-gai Council [2016] NSWLEC 1418 Hearing dates: 19 September 2016 Date of orders: 19 September 2016 Decision date: 19 September 2016 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld Catchwords: CONSENT ORDERS: Modification application; retaining walls, landscaping, tree replacement, boundary fencing Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Ku-ring-gai Local Environmental Plan 2015 Category: Principal judgment Parties: Rachel Turner (Applicant) Ku-ring-gai Council (Respondent) Representation: Applicant: Mr S Kondilios (Solicitor) Respondent: Ms L Finn (Solicitor)

Solicitors: Applicant: Hall & Wilcox Lawyers Respondent: Hones Lawyers File Number(s): 187367 of 2016

Judgment 1. COMMISSIONER: In 2008, Ku-ring-gai Council approved Development Application DA0531/08 for the construction of a two storey dwelling and associated site works including landscaping, retaining walls and stormwater works. The approved landscape plan included boundary fencing. The site is 42 Saddington Street, South Turramurra. 2. The approved works have been substantially completed and an Interim Occupation Certificate was issued bu a Private Certifier on 26 March 2016. 3. In May 2016 the applicant applied to council under s 96(1A) of the Environmental Planning and Assessment Act 1979 (EPA Act) seeking to modify the development consent in the following terms: * Modify approved retaining walls and construct new retaining walls within the site; * Modify ground levels within the rear of the site to suit the modified retaining walls; * Modify the approved landscape scheme; and * Modify the height of boundary fencing between the site and 42A Saddington Street. 1. Pursuant to s 96(6) of the EPA Act, the applicant appeals council's deemed refusal of the modification application,. 2. Apart from the landscaping, the majority of the works have been completed. 3. The matter was initially listed for mandatory conciliation under s 34AA of the Land and Environment Court Act 1979. With the agreement of the parties, the Registrar granted leave for the matter to be heard as consent orders. In accordance with the Court's Practice Notes – Class 1 Development Appeals, the council's solicitor notified the owners of 42A Saddington Street who had made a written submission raising concerns about the proposal. Exhibit 3 includes the letter, proposed orders, and proposed conditions. The date, time and location of the consent orders hearing is provided. Although the objectors did not attend the on-site inspection, I am satisfied that the Practice Note has been followed and that reasonable notice was provided to them.